Avenging Eddie

Depending on how you ask, every hospital spokesperson will tell you with pride or indignation that they treat all patients equally.

Without getting into whether this laudable goal is possible, the recent court case of Eddie Fay, a drifter who ended up dead on the street after he was released from Toronto Western's emergency ward, raises the disturbing question -- what are the obligations of doctors when homeless people show up at the triage desk?

Eddie Fay's brother Nicholas desperately wants to know. On the anniversary of his sibling's death last year he brought a sleeping bag and candles to bed down on the Bellevue Avenue sidewalk where his brother perished five years ago. While that eased his spiritual discomfort, his temporal concerns are focused on the $10,000 civil suit alleging negligence on the part of the two psychiatrists who last treated his brother.

He charges that the two should have known better than to send Fay, who suffered from mental illness and drug addiction, into the street after Fay's doctor had sent him to Western for care in March 2000. The next day he was found dead of hypothermia a block away from the hospital.

Activists backing Fay's suit would have preferred a coroner's inquest rather than a civil suit so that more systemic issues related to the treatment of homeless people could be explored. They don't want Fay's death to be treated as just another drug overdose.

Their concept of wider care, they insist, isn't a mere pipe dream, but the actual practice at St. Michael's Hospital where streetwise staff offer shelter, food and clothing to the unkempt, often disoriented people who end up in their corridors.

Now, with testimony in the suit wrapped up last month, they're anxiously awaiting a verdict expected in June.

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Eddy Fay's tale begins at Queen West Community Health Centre, where Fay's disorderly behaviour (he was suffering from Ritalin withdrawal and throwing himself up against the centre's glass door) led his family physician, Catherine Spence, to place him on a "form one." This required police to take him to the nearest psychiatric hospital for assessment and mandated hospitalization for up to 72 hours. But Fay's stay at Toronto Western, where he was assessed by psychiatrist Stephen Gallant and his supervisor, Dennis Kussin, lasted barely more than two hours. Fay's form-one status was cancelled, and he was released with a list of phone numbers for area detox centres. The hospital did not provide him with a taxi chit or confirm that a bed was available for him at a detox centre. He left, scored methadone and eventually collapsed and died of methadone toxicity and hypothermia.

According to court testimony, the emergency ward at Toronto Western wasn't unusually busy that March 9.

The doctors decided that Fay didn't require forced hospitalization. He was calm and coherent when he arrived with police. Their lawyer argued that it would have been wrong to keep Fay against his will.

But what makes Fay's release difficult to understand for his brother's lawyer, Peter Rosenthal, is the fact that the form one - which gave a detailed medical history - was accompanied by a letter from his doctor expressing concern about his mental state. The doctors, Rosenthal argued, should have known that Fay, a drug addict struggling with alcohol dependency, presented an elevated risk to himself.

Rosenthal argues that Fay's death was foreseeable - that Fay would try to quench his craving for Ritalin (which he'd taken for attention deficit hyperactivity disorder since 1983) by taking other drugs that would leave him vulnerable.

Nicholas Fay's statement of claim alleges that Gallant and Kussin were, among other things, negligent in failing to perform blood and drug screen tests and in discharging Fay even though they knew he was impaired and had nowhere to go on a cold night.

Rosenthal's expert witness, psychiatrist Eva Styrsky, testified that fluctuations in behaviour can occur for up to 72 hours for addicts in withdrawal.

In her view, Gallant and Kussin did not exercise due diligence when they discharged Fay after two and a quarter hours.

"Given this patient's homelessness, impaired state and few resources, to expect him to find his way to a detox centre with no bus tickets or taxi chit on a cold night was in my opinion unrealistic, irresponsible and inhumane," she testified.

Rosenthal also reminded the court that the defendants had not mentioned a shortage of hospital beds as a reason for discharging Fay.

"On that day, (Fay's doctor) Spence gave a cry for help to the hospital, but it was a cry that was not answered," says Rosenthal.

The claim goes on to suggest that Fay's scruffy appearance was a factor. "The defendants assessed Mr. Fay less thoroughly than they would have had Fay not been a 'dishevelled' homeless person," says the statement of claim.

Until the last two months of his life, Fay always took care of his appearance, says Nicholas Fay. Even when he was smoking crack and drinking, he kept his hair tidy and his clothes clean.

A week before he died, Eddie Fay visited his brother in London. Eddie's appearance shocked Nicholas. "He looked like hell. I had to clean him up in the bus station bathroom before bringing him to my place. Then he downed a 26-er like it was water. After, I even called my mom and told her, 'Eddie doesn't have long left,'" Nicholas said outside court.

Although Fay frequented the Queen West health centre and was well known to staff, the night before his death was the first time he had been detained under a form one.

His doctor's accompanying note stated that "recently his behaviour has become much more erratic." And the form itself indicated that "Fay apparently suffers from a mental disorder that likely will result in serious harm to another person or imminent and serious impairment of himself, and he is a risk to himself and others."

Maureen Currie, the lawyer representing Gallant and Kussin, argued that it would have been illegal to detain Fay based on his behaviour earlier that day.

"Once Gallant and Kussin deemed him cogent and competent, they were obligated to release him," she argued. "In our society we have a very high threshold for taking someone's freedom, and being free means we are free to do good or ill to ourselves."

But Judge Pamela Thomson interrupted Currie to wonder aloud during closing arguments about the standard of care afforded society's most vulnerable. "Is there an obligation to do more in the case of homeless people?"

Curiously, the judge mused that Spence's sex might have had something to do with the psychiatrists' decision to cancel the form one. "The form one was signed by Dr. Spence, a female. I wonder, if it were signed by a male, would it have been given more credibility?"

Currie simply reiterated that Fay did not meet the legal or medical criteria to be further detained at the time he was deemed no longer a danger to himself or others.

She accused the plaintiff's expert witness, Styrsky, of "hanging her hat on hindsight," and pointed out that Fay's medical record showed no history of depression, and that he was apologetic for his behaviour at Queen West.

To counter Rosenthal's claim that the doctors should have foreseen that Fay might cause himself harm, Currie further pointed out that Fay's pulse was normal, he was calm with police and didn't require restraints.

"Was it predictable that he was going to do drugs again?" Currie asked. "Certainly, this was his lifestyle, but it was not foreseeable that he would OD on methadone and die that night. For years he'd proven he was a resourceful and capable street-dweller."

Currie called any suggestion that her clients treated Fay differently because of his appearance "outrageous," adding that the function of emergency wards is not to house people with addictions. "This is not the Best Western [hotel], it's the Toronto Western. The reality is, our hospitals don't have the resources to play host with soup and a sandwich," she told the court.

Street nurse Cathy Crowe, who testified on behalf of the plaintiff, says the trial exposes systemic problems as much as it raises questions about the care offered by two psychiatrists in this case . Having spent time at emergency wards with homeless people over the years, she says she'd like to see some anti-discrimination training at Toronto Western.

"To me, it was no surprise that this happened there."

According to Crowe, homeless people often use inner city emergency wards. Sometimes they require care for trauma, but often they end up there by default because they don't have a doctor or can't use appointment-based services because of problems getting health cards.

"Some emergency wards are more accepting of homeless people," she says.

St. Michael's is the best, according to Crowe. At its Rotary Centre, homeless people who've received treatment in the ER can stay overnight. "The defence lawyer's suggestion that soup and a sandwich is not the norm is inaccurate. More and more, it's considered normal protocol that patients' basic needs are attended to."

The St. Mike's program is the only one in Toronto and North America. Patients have access to a bed, shower, meals, the Internet and laundry facilities.

Would Fay be alive if the police had taken him to St. Mike's instead?

Crowe thinks this case shows how crucial it is to standardize protocol for "formed" patients. Crowe says it's pretty standard that days will pass before Queen West staff learn that a "formed" person has been discharged.

"There needs to be a case conference before someone is discharged and not just a call to a detox, but the assurance of a bed," she says. "I can tell you that if (Gallant and Kussin) had called us even the next morning to say they'd let him go two hours after the form, we would have had our radar on and his path would have been clear to us."

Rosenthal admits that an inquest is the way to change the system. "The trial just considers if two individual doctors are negligent, which is less important for society. But in a smaller way, this court could have some effect," he says.

On the anniversary of his brother's death this year, Nicholas Fay set up a shrine at home. "But," he says, "I'll wait until spring to go to his grave and plant a weeping mulberry."